The Long Road to an Ever-changing Future to Return Again to the Past: A 14th Century Solution to the 21st Century Digital Renaissance Problem of Law and Economics

This is my longest post yet, so I’ll give a tl;dr: Copyright law is immovable and unavoidable, and we keep talking about because things around it change constantly. Navigating copyright for the next century can’t look like successful navigation of the last century’s copyright- but it might look a lot like something from 7 centuries ago, and it might shift some of the focus from Copyright to its older sibling, Trademark.

 

I love the history of copyright because I can’t separate it from the history of technology. The core thrill of copyright law is the thrill of technological possibilities warping and toying with long-standing concepts of objects and economics.

It’s too bad I don’t have the graphic design tools to put a timeline up, with the legal progressions listed on one side and the technological milestones listed on the other side. But here’s a text version:

Laws and Philosophy:

The printing press was invented in 1440. Statute of Anne was passed in 1709.  Immanuel Kant wrote “On the Wrongfulness of the Unauthorized Publication of Books,” 1785. The US Constitution was written in 1787, with a clause establishing copyright as a federal law, followed by the copyright act of 1790. In 1831, 1909, 1962-74, 1976, and 1998, the US government passed modifications to US copyright law. Throughout the 20th century, photographs, moving pictures, radio broadcasts, phonographic records, videocassette tapes, and internet search caches are each brought face to face with copyright law.

Technologies:

1837 Samuel Morse sent the first telegraph message. In 1878, a moving picture of a horse at a gallop is recorded. Gugliemo Marconi transmitted radio signals 1.5 miles in 1895. In 1926, Kenjiro Takayanagi created the first television receiver; Philo Farnsworth worked on an improved television the following year in 1927-1928.  Raymond Tomlinson sent the first e-mail on ARPANET in 1971. Tim Berners-Lee published the first web page in 1991. Microsoft released Windows Media DRM software in 1999; Napster also launched in 1999. YouTube launched in 2006. In 2014, a monkey took a selfie.

In February of 2016, YouTube channels and personalities asked: #WTFU. (Which spurred me to write about copyright yet again.)

 

The Times are Always Changin’.

It’s a long history to arrive at such a contentious and unsettled point. Contract, torts, and property law are so much more settled and uncontroversial (particularly in the ways that affect average citizens in our daily lives). Why has copyright always been a recurring issue? Why does it seem to be getting less settled and stable, despite the increase in attention from jurists and scholars?

The problems are not going away because their two main causes aren’t going away. Technological progress isn’t going away. The drive of human creativity isn’t going away. But if we can move copyright law through the end of the 20th century, we might be able to reconcile law and art.

From the Ayssirian Tablet to Bob Dylan, human civilization has repeatedly confronted the distance between “old” and “new.” Generations are defined by the space between them that cannot be bridged. History bears out Marshall McLuhan’s observation that, particularly with regard to new technology, “we march backwards into the future.” But when we arrive in the future, we have to grapple with its residents and their customs and culture. There are always “The New Kids.”

The New Kids: Popcorn Time and Social Media “Prosumers.”

One fine afternoon last year, Gabe and Tycho talked about how terrible piracy was, and how funny it was that the ESA was going to allow Social Media Mavens to attend their E3 show alongside the press. This whole podcast is about these two topics, and the two of them seem unaware that the same theme actually permeates the entire discussion. These are two examples of how new media and technology shape culture in a way that dictates how established industries must change – two industries in particular. Though one of these industries was established 83 years before the other, they both face upheaval from the effects of the internet.  The ubiquitous availability of devices that connect the world is the result of a collection of forces that has – and will – entirely change society.

In their comic, “The New Kids” are ostensibly the “Prosumers,” set to arrive at E3 and replace the Old Guard, Traditional-Role Press. But there’s a layer built into this that Mike and Jerry don’t even know about: “The New Kids” are the technologies and media and cultural shift that change ESA’s thinking about who should be at E3. The New Kids are all of the reasons Popcorn Time can exist and even thrive, and why AMC needs to think very fast about how to avoid the fate of Borders Books. A society always has New Kids. Progress doesn’t happen without New Kids.

One Reason Copyright Discussions Never End: They Go the Wrong Direction

Copyright affects a lot of people on the internet, so it gets a lot of attention and discussion. Too much has already been said about copyright law – most of it is pretty unhelpful. Comparisons to the theft of physical objects only invite a hyperfocus on the distinction between copying and theft, which is just misunderstanding the issue in a different way. Arguing one misunderstanding against another will not lead to a better solution, just a different, less obviously-bad problem.

I think a better analogy is in spaying the goose that lays the golden* egg, or gelding some equally bounteous and mythical stallion. Analogies about terminating reproductive capacities are sometimes slow to catch on, for some reason—but maybe we could at least speak of taking an engine out of a car.

Ultimately, I think all of these analogies are really the wrong route. The most significant and salient point is lost in the effort to analogize: the way that digital media allows the manipulation of art is entirely unlike what human civilization has seen so far. It just isn’t like tools or farm animals or agriculture or cars or anything else to which we are tempted to analogize. The digital replication and transmission of images, text, and sound is entirely unlike the things that have happened in last 5 millennia (or 20 millennia) of recorded human history.

The internet, and the bundle of technological developments that have come with computing and telecommunication, fundamentally changes the potentials for human expression and connection. A fruitful discussion about copyright needs to consider how we got to this point, and where we can, must, and mustn’t go next.

 

Technology Giveth, and Technology Taketh Away.

Justice is a tricky thing, because it seems so obviously favorable and desirable when it’s on your side. The raw, unrestrained, unadulterated, unfiltered, concentrated justice is very difficult and very dangerous – much of the role of the legal and political process is to temper that justice with reason and mercy.

There is an important truth in this discussion which does not get mentioned often enough: through new possibilities in efficiency and distribution, technology made artists and entertainers wealthier and more famous than they could have been without those advances. There was once a time when an actor had to perform every single time the actor wanted to be paid. Now, the actor performs, and then enjoys the rewards of technology repeating that actor’s performance—hundreds of thousands of times, for millions of people. (Not to mention the role that technology plays in editing or reusing art!) No content creators complained when the technology allowed them to make more money for less work, and they aren’t worried about any potential benefits they now reap from increased exposure and dissemination of their products.**

Reaping benefits from digital technology is no justification for the violation of copyrights, of course—but it is important to see the broad picture of how technology has interacted with artistic creation and distribution, and consider at least three important facets of this realization. First and foremost, no one wants to argue that the technology is inherently bad. Anyone concerned about the protection of their works has profited from the efficiency of some technology – even the same technology that threatens to harm them.

Second, it raises questions about what “fairness” really means in this scenario: as we move into the future, how should we evaluate the benefits for creators against the costs to the audience? Who ought to benefit from the powers of digital technology, and what harms and benefits should be considered? There is a very big picture here, and evaluations of fairness will change as one’s values narrow or expand the scope of one’s view. A good discussion can only happen when the whole picture is really considered.

Third, the power of new technology makes us consider what is now possible: the separation of fame from fortune. As I have discussed, the internet allows someone to become famous without becoming wealthy. In ages past, the opportunity to gain fame usually required a lot of money, but now, propagating art does not require the same mountain of resources that it once did. As we move toward new structures to support art and entertainment, fame will become a prerequisite for wealth.

 

The Way Forward: The Return to Patronage.

IndieGoGo launched in 2008. Kickstarter launched in 2009. GoFundMe launched in 2010.  Patreon launched in 2013. It’s harder to demonstrate mathematically, but I will make the wild assertion that game pre-orders have been more heavily promoted and used in the last 10 years than in the preceding 30 years. (I would love to know if pre-orders are proving more successful than DLC or MicroTransactions as a business model.)

When people pay the creator up front, the creator is less concerned about piracy, because the money is already guaranteed. Presumably, the farmer cares less about the goose that has already filled a basket with golden eggs than the one that is expected to eventually fill a basket.

In the world of patronage, reputation (sub-categories: hype, public relations, image, trust) is everything. Creators rely on their history of quality and integrity to secure funding for their next project. Creators who fail to deliver quality products, or who demonstrate shady or unsavory business practices, will suffer for their failings in their future endeavors. Some artists and companies are already carving out their reputations, through repeated successes, unfortunate failures, public statements, and choices.

Navigating copyright in the conditions of Digital Patronage will be shaped by a different power dynamic than the familiar, one-to-many, gate-kept, closely-owned media structures of the 20th century. Clutching at straws of hard-line, traditional copyright enforcement will not secure survival. Thriving will require earning trust through performance. Creators must give more consideration to next year’s potential earnings than to next quarter’s bottom line. They must create a functional, interactive, cooperative, collaborative relationship with their audience. The successful creators of the 21st century will be those who treasure their reputation as they will rely on the good will of others.

… And reputation and good will are what Trademark Law is all about…

 

 

 

*“By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas” (p. 558) Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985)

 

** Those who manufactured physical products did not enjoy this same boon through the 20th century. Advances in 3d printing now give them a direct stake in the outcome of this transformation. There’s room for everyone at this party— I can’t wait for Physical Objects to show up with their partner, Patents!

 

Epistemology in the Age of 24-Hour Fingertip Media

“Suppose I tell you an alleged fact— that it rained last night in Jacksonville, FL. On the count of three, believe this fact. 1…2…3. What do you believe about last night’s weather in Jacksonville, and why?”

This experiment (presented to me in a discussion of the ethics and epistemology of Spinoza compared against Locke) is not really interested in causing any beliefs about past weather events, of course. It is meant to explore notions of what it means to “believe” a proposition about the world (and, possibly, what we consider “evidence”).

To avoid potential for perjury, evidence is sometimes entered into court “on information and belief.” That is, information has been given and someone believed it (it isn’t firsthand knowledge). But something more must be going on, as we obviously don’t merely believe anything we are informed of.

One question at stake is whether we choose our beliefs. This is difficult because philosophers use “belief” to describe the kinds of things which normal people count as knowledge: that there is a chair I am sitting on at this moment, that all triangles have 3 sides, that the sky is blue, that I like toast, etc. As well as the things normal people often describe as belief: whether there is an afterlife, whether it will rain tomorrow, whether a person is lying, etc. Some might argue there is a choice to be made in these second kinds of beliefs, but not in the first kind. I will depart from the epistemologists here because I have introduced my theme: Believing a proposition can be more complex than we take for granted.

This is all foundational to the issue we face in a world where nearly any information can be immediately accessed wherever we are: What do we believe, and why? Each information source is a filter, and must necessarily choose what to include or exclude, and so will—and can—only offer a single viewpoint on a subject. Every journalist’s work, every news network, every news blog, is a set of information with the implicit instruction: “Believe this.” In the past, we believed such sources in good faith. However, “information and belief” has become somewhat diluted of late. Largely as a result of a 2009 SCOTUS decision (Ashcroft v. Iqbal), there are very few pleadings entered in court “on information and belief” anymore. This is because the standard for a well-pleaded complaint was raised to require more than mere “information and belief” could provide. Should we raise the standard for the increasing number of pleas for our own judgment to something higher than “this is information- now, believe it”?

I think there a cautious-pragmatic approach that appeals for handling [perhaps not quite all] such information. The general premise is that the strength of the belief should be limited by both the demands of the belief and the evidence (supportive, absent, and contrary). So I may be free to believe that it rained last night in Jacksonville because I know that Jacksonville is a place where it rains with some frequency and no one has informed me that it did not rain there last night. However, I might be quite cautious to wager $5 on this fact until I obtain more evidence, and still more cautious and more demanding of evidence as that wager increases.

Cyborgs and Avatars

 Last year, I wrote a paper to address (primarily) one question: How, metaphysically, can we describe or explain our connection to and presence in cyberspace? (e.g., When I play an MMO, where am I? Is my social network profile me, or part of me, or a representation of me? When I act online while sitting at a desk, where does my action take place? If I am in one place while my actions are in another place, who is really performing the action?) I offered two possible explanations: the first found roots in structuralism and semantics, understanding the issue as one of representation through symbols. Here, “network” became an appropriate term for understanding the metaphysics of the internet. The second option I offered was analogized by hand puppets, and held that when people act online, they do so through avatars of some sort. While they are distinct from their avatars, they animate and control them, and so act through them.

I briefly mentioned other, related ideas but did not develop them. One such idea was cyborgism. I wasn’t sure (and I still am not) how to develop this idea, but I think it works by turning the problem inside out: rather than explain how we exist in machines, we have to explain how machines exist in us. Perhaps by explaining how we are affected by smartphones, motion-sensor videogames, robots, Facebook and Twitter feeds, and the like, we can understand the questions of cyberspace from a new angle. Perhaps this is not so different from the “puppet” view, except that the hand does not merely occupy the puppet, but merges with it. This might make sense if we agree that we shape our media (and technology) and then our media shapes us. On this view, it may not make sense to talk about the human as above and distinct from the media.

I don’t yet have a good grasp on this fledgling idea, but I always like the idea of questioning the question.